Elements of The President's Proposal

The Department's Mission.
President Bush proposes three missions for the new Department of Homeland Security:

• Preventing terrorist attacks within the United States,
• Reducing America's vulnerability to terrorism, and
• Minimizing the damage and recovering from attacks.

Historically, Congress and the White House have dispersed these missions among 100 federal entities with little coordination. By establishing one Cabinet-level department with responsibility for most aspects of homeland security, the President is taking a bold step to achieve greater efficiency and effectiveness. Reducing the number of agencies with homeland security missions will also facilitate the Office of Homeland Security's coordination of federal homeland security policy across all government agencies.

The Department's Structure.
The President's proposal would not create a new federal bureaucracy; rather, it would combine existing federal agencies and offices that have homeland security responsibilities under one authority. For example, the President would transfer the new Transportation Security Administration and the Coast Guard to the DHS, which would remove all direct homeland security duties from the U.S. Department of Transportation. The President also would fold the Federal Emergency Management Agency (FEMA) and the Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) into the DHS.

The functions of all the offices relocated to the DHS would be distributed among four major divisions:

• Border and Transportation Security;
• Emergency Preparedness and Response;
• Chemical, Biological, Radiological and Nuclear Countermeasures; and
• Information Analysis and Infrastructure Protection.

The last division would house a new intelligence center that compiles information on suspected terrorists from across the intelligence community, analyzes it, and disperses it so as to avert future attacks. Such a center would not need to have its own collection capabilities.

Making available all terror-related intelligence in one fusion center would be an important first step in correcting some of the intelligence deficiencies that existed before September 11, 2001. Coordinating intelligence-sharing on matters related to the war on terror and terrorist threats to the United States between the federal government and state and local governments and analyzing intelligence related to those threats require a special office. While this responsibility has fallen largely on the Director of OHS, Governor Tom Ridge, state and local officials want more operational assistance than the OHS in its advisory capacity can provide. The DHS, with its operational focus, would be better able to fill this need.

The President also proposes transferring the Secret Service from the Department of the Treasury to the DHS, allowing it to maintain its existing duties, including protecting the President and providing security for such high-profile national events as the Olympics and the Super Bowl.1

Such a broad reorganization of federal agencies should result in leaner and more efficient implementation of homeland security policy. In many cases where multiple federal agencies now share a homeland security responsibility, such as examining and securing cargo containers entering U.S. ports, only one would be responsible. This would allow redundant personnel brought in from the various agencies that had performed this task to be assigned to cover more cargo ships. It would also simplify coordination with other federal agencies that contribute to homeland security efforts, such as research into defenses against bioterrorism.

The DHS would be staffed initially with the more than 169,000 federal employees transferred to its authority from other agencies, without requiring an increase in the President's $37.5 billion budget request for fiscal year 2003. Over time, the Secretary of DHS should be able to eliminate redundant functions as offices and duties are consolidated.

Those who argue that the President's proposal is merely a transformation of the White House Office of Homeland Security to give its director and staff sufficient authority to fulfill their coordinating and advisory functions are wrong. The OHS has proven itself as an adviser to the President that can help enforce his agenda. The President plans to retain the OHS so that it can continue to fulfill these functions and coordinate the policies of the remaining federal agencies with homeland security responsibilities. But its efforts have been hindered by the fragmentation of responsibilities among federal agencies, as well as overlapping authorities and insufficient resources within the agencies. Creating a Department of Homeland Security will solve such organizational problems and facilitate the OHS's coordination role.

Building on Existing Recommendations

The issue of reorganizing the federal government to improve the implementation of homeland security policy had been discussed in Congress well before the attacks of September 11. Immediately after the attacks, many Members of Congress sought to address the government's organizational problems by introducing legislation to rearrange the federal government. However, the President preferred instead to focus on faster ways to improve coordination. He established the Office of Homeland Security and moved quickly to reduce the nation's vulnerability; and he initiated a strategic assessment of U.S. capabilities for securing the homeland.

Congress's deliberations on reorganizing the government's homeland security functions have largely built on the recommendations of the U.S. Commission on National Security for the 21st Century (Hart-Rudman Commission), which submitted its last report to Congress in February 2001. This commission proposed creating a new federal agency by consolidating the Coast Guard, the Customs Service, the Immigration and Naturalization Service (INS), and FEMA into a new National Homeland Security Agency.

In April 2001, Representative William (Mac) Thornberry (R-TX) introduced H.R. 1158 to create that agency. Shortly after September 11, Senator Joseph Lieberman (D-CT) proposed similar legislation (S. 1534) to create a National Homeland Security Department (NHSD). Other Members, such as Representative Alcee Hastings (D-FL) and Senator Bob Graham (D-FL), promoted the findings of the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (Gilmore Commission) in H.R. 3078. The Gilmore Commission had concluded that a White House office with detailed statutory authority, modeled after the Office of National Drug Control Policy (ONDCP), would be best situated to solve the federal government's coordination problems.

Since the introduction of H.R. 1158 and S. 1534, Representative Thornberry and Senator Lieberman have refined their proposals to gain the support of more Members of Congress, and last May introduced the National Homeland Security and Combating Terrorism Act of 2002 (H.R. 4660). S. 1534 cleared the Senate Governmental Affairs Committee on October 11, 2001, but has yet to be voted on by the Senate; H.R. 4660 is currently before the House Committee on Government Reform.

Like the President's proposal, H.R. 4660 would combine the functions of FEMA, the Coast Guard, the Border Patrol, the Customs Service, the INS's law enforcement functions, the Animal and Plant Health Inspection Service (APHIS), and the federal government's critical infrastructure protection offices. The bill also would establish an Office of Science and Technology to centralize research on homeland security-related technologies and a crisis center to direct federal responses to terrorist attacks.

However, unlike the President's proposal, H.R. 4660 does not include an intelligence center or the Secret Service in this new entity. And though it would facilitate the establishment of a DHS, it also includes provisions to establish a National Office for Combating Terrorism within the White House, replacing the OHS--a flexible institution responsible only to the President--with a bureaucracy that would have to divide its loyalties between the President and Congress.

This tension would reduce the President's ability to coordinate the activities of the remaining federal agencies with homeland security responsibilities and to receive sound policy advice--both of which are primary OHS functions. Such a provision, which might have gained the backing of those who support establishing an office modeled after the ONDCP, was rendered unnecessary by the President's announcement regarding the establishment of the DHS.

Next Steps for Congress and the White House

To move forward on the President's proposal for a new Department of Homeland Security, Congress and the White House should:

• Ensure that the DHS will not evolve into another intelligence "stovepipe."
  The President intends to create an intelligence section within the DHS to "fuse and analyze intelligence and other information pertaining to threats to the homeland."2 Such a center would enable the President to remedy many of the information-sharing failings that plagued the intelligence community before September 11. However, if it is designed poorly, this new office could increase the problem by creating yet another venue for information compartmentalization.

  The recent controversies over the Federal Bureau of Investigation's handling of two requests from its Phoenix and Minneapolis field offices and of the Central Intelligence Agency's failure to alert other agencies with respect to its investigation into two al-Qaeda operatives illustrate the importance of sharing information and the ramifications of the government's failure to do so adequately. Intelligence is useless unless it is accessible by decisionmakers who could use it to make good judgments.

  The President plans to give the DHS intelligence arm access to information from all government sources so that it can develop fuller analyses of all possible threats to America. The reform should go further. The DHS must be able to distribute the analysis to agencies within its own structure that are the end consumers of such intelligence, such as INS and the Consular Services. The DHS intelligence office must ensure that its analyses, and in many cases the raw intelligence, reach the agencies that are the front line against possible terrorists entering the nation's borders.

  Further, since the DHS will be collating all of this information, it should also function as an intelligence fusion center3 for the entire federal government. Even with the establishment of the DHS, the FBI, CIA, and other federal agencies must still play major roles in combating terrorism both domestically and internationally. Thus, they will still need access to the full scope of federal information available.

  To promote this kind of all-source intelligence fusion, the DHS intelligence center should be equipped with a computer network with advanced data-mining capabilities that can extract information from other intelligence community networks when it is entered. All other members of the intelligence community should then have access to this database in a manner consistent with each user's security clearance. The DHS's office for state and local cooperation should work with the intelligence office to ensure that local law enforcement agencies and local decisionmakers have access to this information as appropriate and on a need-to-know basis.

  Establishing the DHS's intelligence function as an intelligence fusion center is not only the best approach but also the most efficient way to correct the problem of insufficient cooperation between the FBI and CIA. Though some have suggested incorporating these two agencies into the new Department of Homeland Security, that would be a mistake. The FBI and CIA have broad intelligence and law enforcement missions that go well beyond combating terrorism. Bringing those missions under the authority of a department with the narrow focus of combating terrorism would reduce their profile.

  In fact, one of the primary reasons for creating the DHS is to transfer the homeland security organizations of the federal government into one department that shares the security focus. Bringing the FBI and CIA under this rubric would create new problems by inhibiting the federal government's ability to investigate national security threats and crimes other than terrorism. Further, establishment of a single agency responsible for foreign and domestic intelligence collection, law enforcement, domestic security, and consequence management would raise dramatic concerns regarding civil liberties.

• Focus on consolidating redundant functions.
  The President's plan would consolidate the operations of numerous federal offices into one department, the DHS. Not only are homeland security responsibilities spread throughout the government at this time, but programs also frequently overlap each other or exist in agencies that do not have a security focus. The result has been wasted resources, stifling bureaucratic red tape, and less than efficient coordination. Centralizing redundant homeland security functions into one agency that has homeland security as its main mission would reduce bureaucracy, conserve resources, and improve coordination of efforts.

  Congress should strive to reduce the number of government agencies involved in homeland security through the legislation it passes to establish the DHS, in order to reduce the burden of government on policy implementation. FBI Special Agent Coleen Rowley alluded to the effects of laborious bureaucracy on her office's investigation into terrorist Zacarias Moussaoui in a now-famous memo to FBI Director Robert Mueller in May.4 Congress and the Administration can do a great deal more to correct the deficiencies by reducing redundant offices, personnel, and systems as the DHS is assembled. These reforms should reduce the number of steps in the bureaucratic process involved. Further, Congress should grant the President's request for special staffing rules for the Secretary of DHS to ensure that the best people in government service fill these slots.

  Regrettably, congressional politics has prevented such consolidation in the past; it must not be allowed to do so again. Within hours of the President's announcement, a number of prominent Members of Congress were quick to endorse the idea provided the offices for which they currently have oversight authority are not affected. For example, House Transportation Committee Chairman Don Young (R-AK) voiced concerns over what the change would mean for oversight of the Coast Guard and the Transportation Security Administration, and Senate Commerce Committee Chairman Ernest F. Hollings (D-SC) said he would resist giving up responsibility for airport and seaport security.5 The DHS's missions and functions must be determined by national homeland security needs, not congressional politics.

  Congress must remain just as disciplined after the creation of the DHS and refrain from assigning homeland security programs to other offices. Congressional politics is one of the main causes of the disorganized state of homeland security in the Untied States today. For example, after the Oklahoma City bombing and the sarin gas attacks in Tokyo, Washington began to initiate new programs to assist America's first responders in preparing for a terrorist attack using weapons of mass destruction. In 1995, President Bill Clinton assigned responsibility for consequence management to FEMA. However, the following year, Congress assigned the same responsibility to both the Department of Defense and the Department of Justice--decisions driven by budgetary politics, not strategic vision.6

  Once the DHS is established, it must have sole authority for the policy areas under its jurisdiction to be successful. If homeland security functions continue to be distributed to other agencies, fragmentation and inefficiencies will continue to plague the nation's homeland security policy.

• Keep the OHS in the White House as an independent advisory and coordinating entity.
  The President plans to retain the Office of Homeland Security as an independent office in the White House to continue advising him and coordinating the policies of federal agencies that retain homeland security missions. The OHS in this role is an important pillar of the President's proposal that may be at risk during Congress's attempt to legislate creation of the DHS.

  Compared with the Director of OHS, the Secretary of DHS would not be well-positioned to function as the President's principal adviser on policy or to ensure that other federal agencies enact policies in accord with the President's strategy and the nation's laws. The key to succeeding in these missions is institutional independence from the federal bureaucracy and Congress. Cabinet-level departments, such as the proposed DHS, compete against each other for budget appropriations and, as a result, cannot neutrally manage the actions of other agencies. Similarly, the budget process creates bureaucratic interests that may differ from the President's, which would reduce a department's ability to advise the President objectively.

  Further, senior political appointees to federal departments and agencies must be approved by the Senate and are required to testify and report to Congress frequently. This would further complicate a department head's ability to advise the President and coordinate federal policy apart from external influences. In effect, the adviser would be required to answer to three bosses: the President, Congress, and a departmental bureaucracy.

  It is for these reasons that the President modeled the White House Office of Homeland Security on the National Security Council (NSC), which was established by the National Security Act of 19477 to advise and assist the President on all national security and foreign policy matters. The NSC also serves as the President's principal arm for coordinating those policies among the federal agencies. The NSC's staff and responsibilities are determined solely by the President. In fact, only one sentence in the entire National Security Act discusses the NSC staff and its role.

  Congress, however, may attempt to turn the OHS into an office similar to the congressionally mandated Office of National Drug Control Policy (ONDCP).8 The National Homeland Security and Combating Terrorism Act of 2002 (H.R. 4660) contains provisions for a White House National Office for Combating Terrorism that would function in this manner. Unlike the Director of OHS, the director of this office would be subject to approval by the Senate, and the office's authorities would be designated by Congress. Such an office would both weaken the President's decisionmaking abilities significantly and hamper coordination. The director of this new office could not be neutral in advising the President because he or she would rely on Congress as much as the President for authority. Further, the ability to coordinate efforts and policy among agencies of the government could be hampered significantly by attempts in Congress to differentiate the responsibilities of the Secretary for Homeland Security from those of the Director of OHS.

  The NSC has proven successful in its role because every President is able to define the office so that it complements his own management style and to hold its staff accountable to the President alone. President Bush was wise to model the OHS on the NSC. Congress should not alter the status of the OHS in establishing the DHS. Any discussion of the OHS in the implementing legislation should be as vague as the language that established the NSC.

• Establish new homeland security committees within Congress.
  The White House has identified 88 congressional committees and subcommittees with legislative, budgetary, and oversight responsibility for homeland security. This vast number complicates the enactment of homeland security policy by requiring redundant action by many committees; and this structure, which would force DHS officials to spend much time testifying, would place unnecessary burdens on the agency.

  For the DHS to achieve its maximum efficiency, Congress must match the reorganization of the federal government with a restructuring of the congressional committee system. The Hart-Rudman Commission, the Gilmore Commission, and the National Commission on Terrorism (Bremer Commission) have all recommended that Congress restructure its operations for homeland security, but neither house has acted on these recommendations.

  Both the Senate and the House should establish new standing Committees on Homeland Security and give them sole jurisdiction over functions assumed by the DHS. These committees should establish their own subcommittees that parallel the four divisions within the DHS. Existing committees and subcommittees that currently have authority for these areas should cede them to the new committee. In addition, both the House and Senate Appropriations Committees should establish subcommittees on homeland security to supplement the work of the standing authorizing committees. Streamlining the legislative process and providing acute transparency of its workings should be Congress's top priorities in revising its committee structure. Establishing authorizing committees and appropriations subcommittees on homeland security would give the DHS a central committee in each house of Congress with which it could discuss homeland security legislation. This new system would make it more difficult for Members of Congress to attach non-homeland security earmarks to homeland security budgets by consolidating the authorizing and appropriation process.

  Politically, however, this will be challenging for Congress because powerful committee chairmen are reluctant to relinquish power, even in the name of national security. As Senator James Jeffords (I-VT) noted in describing his reluctance to give up oversight for nuclear power plant, dam, and drinking water security, "we're very jealous about these things."9 But the jealousy of legislators is not an acceptable reason to prevent necessary reform. All Members have a responsibility to conduct the people's business in an efficient manner and to develop policies that protect them from international terrorism, even if doing so disrupts Congress's hierarchy of power. House and Senate leaders should make clear that they tend to match the President's leadership by creating new committees for homeland security.

• Ensure that the DHS continues to protect civil liberties while securing the nation against terrorism.
  During the past nine months, the Administration and Congress have done an admirable job of increasing the federal government's ability to combat terrorism without subverting constitutionally mandated civil liberties.10 The DHS must continue to maintain this balance. Its creation would provide further protection of a primary American liberty: to be free from a violent death at the hands of international terrorists. A process within the DHS must be established to review all proposed policies and ensure that they do not violate constitutional freedoms, such as the right to due process of law and freedom from unreasonable search and seizure.

Conclusion

The President has received broad support for his proposal to create a Department of Homeland Security, but the language of the legislation that establishes it will be instrumental in ensuring its success. The DHS must promote information-sharing instead of further compartmentalizing it, and it should reduce bureaucracy by consolidating agencies with homeland security missions. Congress should retain the Office of Homeland Security as the President's independent adviser and advocate in implementing his homeland security strategy, which can coordinate efforts across all federal agencies, keeping it free from congressional and bureaucratic restraints.

Congress also must recognize that its own organizational structure is part of the problem. It should take steps to rectify the inefficiencies in how it conducts homeland security business.

Finally, the Administration and Congress must continue to work together to ensure that civil liberties are protected throughout this process, and after the DHS is established. Failure to acknowledge these core principles while developing the charter of the Department of Homeland Security will make coordination of homeland security policy, strategic planning, and oversight much more difficult.

Michael Scardaville is Policy Analyst for Homeland Defense in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.